TERMS OF SALE FOR INTERNATIONAL CUSTOMERS
PREAMBLE
These General Conditions of Sale apply in full to every order and to all sales of FIBERNET Products and are governed by Italian law. For those matters not regulated in these General Conditions of Sale the United Nations Convention on Contracts for International Sale of Goods signed in Vienna 11th April 1980 (“CISG”) shall apply. These general terms and conditions may be read and downloaded from the FIBERNET website (https://www.fibernet.it/en/) and are therefore deemed to be fully accepted by the Buyer even without a specific written acceptance.
1 DEFINITIONS AND SCOPE
1.1 The following definitions are used in this document:
– “Buyer” or “Customer” refers to the person, firm or company the purchase order is received from;
– “CISG” refers to the United Nations Convention on Contracts for International Sale of Goods signed in Vienna 11th April 1980
– “General Conditions” refers to this document, containing the general terms and conditions of sale of Fibernet S.r.l.;
– “Operations Manual” refers to the instructions provided by the Seller for handling, installation, use, maintenance and periodic inspection of the Products, that complete the set of contractual documents in force between the Seller and the Buyer;
– “Parties” refers to the Seller and the Buyer jointly;
– “Products” refers to any and all goods, products and components sold by Fibernet S.r.l.;
– “Seller” or “Fibernet” refers to Fibernet S.r.l. with its registered office in Via Degli Olmetti n. 18, 00060 Formello (Rome) VAT Number 06557181002 – Phone: +39 0690405039 – Italy.
1.2 These General Conditions apply to any and all supply of Products by FIBERNET to any Buyer, even if these General Conditions are not expressly referred to, mentioned or explicitly accepted by the Buyer.
1.3 Diverging agreements shall be binding on FIBERNET only upon prior written acceptance by the Seller and only with respect to that specific transaction. In any case, even if inconsistent provisions are agreed upon, these General Conditions shall apply for the parts not expressly modified.
1.4 Any terms that may now or in the future appear on Buyer’s forms or communication, even if mentioned or included in orders or in any other document sent to the Seller, are to be considered as non-applicable and rejected without the need for any further action and will not be binding on Fibernet. No conduct of Fibernet may be interpreted or used to express its implied acceptance to the Customer’s general conditions of contract.
1.5 These General Conditions, the Customer’s Purchase Order and the Seller’s Order Confirmation (as defined hereinafter) and the Operations Manual/s, will constitute the entire agreement between the Parties with respect to the Products being sold and shall supersede all prior proposals, negotiations and communications, oral or written, between the Parties regarding the same.
1.6 The Seller reserves the right to modify or vary the General Conditions by including such variations in its price quotations or in any other written correspondence sent to the Customer.
1.7 These General Conditions shall apply, mutatis mutandis, to all commercial agreements stipulated by Fibernet, irrespective of their classification or name.
1.8 Except as set forth to the contrary herein, any right or remedy of the Seller will be cumulative and without prejudice to any other right or remedy, whether contained herein or not.
2 PRODUCTS
2.1 Any representation and/or image relating to the Products included in websites, brochures, catalogues, price lists or other similar documents of the Seller is to be considered approximate and purely illustrative. As a consequence, such representations and/or images do not represent the exact state of the Products and do not constitute a quality warranty. Technical and physical characteristics of the Products as well as qualities of the same are described in technical manuals of the Seller only.
2.2 The Seller declares that the Products are compliant with the manufacturing standard according to which the Products have been designed and manufactured. Buyer shall use and apply the Products in accordance with the Operations Manual and, in any case, in accordance with the diligence required by the nature of the Products. A failure to do so on the part of the Buyer will result in the lapse of any warranty and in the unenforceability of the warranty rights under these General Conditions or any other legal or agreed warranty.
2.3 It is the responsibility of the Buyer, before entering into the contract, to make sure that the Products are suitable for their specific purpose and/or intended use and, in addition, that they also comply with the laws and regulations applicable in the place where the Buyer will import, distribute, sell or use them in any way.
2.4 Fibernet is entitled to make any changes to the Products it deems necessary or appropriate, even after execution of the sale contract. If Fibernet makes a substantial modification to the Products (e.g. to alter the performance or usage), Fibernet shall communicate such modifications in writing to the Buyer.
2.5 The Buyer shall in turn properly inform its customers of the characteristics of the Products and of the Operations Manual in accordance with the indications of the Seller. Without prejudice to the above, the Buyer shall be the sole person responsible and liable for such declarations made towards its customers and shall indemnify and hold the Seller harmless from any damage that may be suffered in relation to such declarations of the Buyer, in the event they result false, incomplete or inaccurate.
3 OFFERS, ORDERS AND ORDER CONFIRMATIONS
3.1 Unless otherwise stated by Fibernet in writing, its quotations and offers will remain in force for a period of 15 (fifteen) working days from date of issue. In any event Fibernet is entitled to cancel or change the quotations or offers at any moment before issuing the written Order Confirmation in acceptance. All quotations are non-binding and subject to revision for errors and omissions.
3.2 Orders placed by the Customer shall not be considered accepted unless confirmed by the Seller in writing (“Order Confirmation”). If the Seller should fail to issue an Order Confirmation, but issues an invoice for the ordered Products the Seller’s invoice or the execution of the order shall be regarded as an Order Confirmation.
3.3 Any purchase order, order proposal or supply request forwarded by the Buyer represents an irrevocable contractual proposal to Seller for a period of 5 working days from the date of the Seller’s reception, with the Seller free to accept or refuse the order at its sole discretion. Orders and/or amendments must be communicated in writing; otherwise the Seller does not accept any responsibility for errors or consequent misunderstandings.
3.4 In the event a cancellation or termination is agreed, the Seller shall be paid for all Products supplied prior to cancellation and be reimbursed all incurred costs, including costs of material purchased or committed to, fully attributable labour costs, reasonable overhead allocation and a reasonable profit margin.
4 PRICES AND TERMS OF PAYMENT
4.1 The Products shall be supplied at the prices agreed between the Parties.
4.2 Unless otherwise mutually agreed in writing, all prices are Ex Works (Incoterms latest version) and do not include VAT and any other sales tax, custom duties, insurance or other costs and tariffs.
4.3 The Buyer shall pay for the Products with the payment terms and conditions in the Order Confirmation or as otherwise agreed in writing between the Parties. Payment shall be considered to have been made on the day the full amount has been credited to the bank account of the Seller. Bills of exchange and cheques shall not be deemed payment until they have been honoured.
4.4 Payment shall be executed by the Customer in Euro or, at Seller’s discretion, in the currency of the place where the Buyer has its registered office if so indicated in the sales invoice.
4.5 Unless otherwise mutually agreed and stated in the Order Confirmation, payment is considered to be an advance payment for material ready for shipment.
4.6 If the Buyer delays or is otherwise in default with a payment, the Seller shall be entitled: (i) to demand late payment interest pursuant to Italian Legislative Decree 231/2002; and (ii) upon written notice to the Buyer, suspend ongoing and future deliveries until all late payments and late payment interest are fully paid; and (iii) to terminate all contracts it entered into with the Buyer, in the event the debt has not been settled within 15 (fifteen) days from the formal written request made by the Seller.
4.7 In addition to other remedies available under the applicable law and these General Conditions, if the Buyer fails to make payments in the time and manner specified by Fibernet or if Buyer’s business goes into any extraordinary arrangement – which shall include, without limitation, seizure or protest has been made, payments delayed or insolvency proceedings petitioned or opened – the Seller shall have the right: (i) to suspend or cancel, at its sole discretion, further delivery; and (ii) to declare all its claims arising from the business relationship as immediately payable; and (iii) to cancel discounts and bonuses that may have been agreed between the parties; and (iv) to request for an advance on the payments due or a deposit in warranty.
4.8 Should an agreement be reached on instalment payments, and an instalment is not paid on time, then the full amount shall fall due, without regard to Buyer’s payment deadline, even if the conditions of article 1186 of the Italian Civil Code are not met.
4.9 The Buyer will not be entitled to start or continue any lawsuit or action against Fibernet without prior payment of the total price in accordance with the sales contract, even in case of notification of faults and/or defects of the Products. The payment shall, in no case, be suspended or delayed.
4.10 The Buyer shall not be entitled to make any set-off, retention or reduction unless approved in writing by the Seller or pursuant to a legally binding court decision.
5 RETENTION OF TITLE
5.1 Title to the good shall pass to Buyer only upon receipt of full payment for the Products. Without prejudice to the above, the risks on the Products shall be regulated by the Incoterms rule agreed between the Parties for the delivery of goods.
5.2 The Customer shall communicate to Fibernet all the events that may affect the Products while still property of the Seller. The Buyer shall also designate Fibernet as beneficiary of the entire value of the insurance policy covering the Products subject to the retention of title.
6 TERMS OF DELIVERY
6.1 Unless otherwise agreed in writing, Products will be delivered Ex Works (Incoterms, latest version) at Seller’s plant. The Buyer is responsible for freight costs of Products.
6.2 Unless otherwise specified in writing, risk shall be transferred to the Buyer once the Products are ready for dispatch and notice of readiness for dispatch is received by the Buyer. Should the Buyer fail to take delivery of the Products on time, the Buyer shall bear the risk of damage or loss of the Products and Fibernet may invoice them as delivered. In this case, the Seller shall have no obligation to store the Products in other than their usual method. Fibernet shall be entitled to charge the Buyer any costs which result from the continued storage of Products.
6.3 All delivery or installation dates are indicative and non-binding unless otherwise expressly agreed in writing. Notwithstanding the above, Seller shall make commercially reasonable efforts to respect such dates but in no event shall be deemed liable for any delay in delivery. The Seller will not therefore reimburse damages, either direct or indirect, suffered by the Buyer as a result of delay in the delivery of the Products.
6.4 Unless otherwise agreed in writing, the Seller is not obliged to accept the return of the Products. In any event, all costs arising from a return shall be at the expense of the Buyer.
7 DUTY TO INSPECT AND ACCEPTANCE OF PRODUCTS
7.1 Buyer shall promptly upon receipt of Products verify if the delivered products correspond to the Order Confirmation and whether they have been damages during transportation and record any objections on the transportation documents, and ensure such notification is countersigned by the carrier.
7.2 Any such claim of non-conformity or damage by the Buyer shall be communicated in writing to the Seller within 8 (eight) days following the date of delivery of Products to the Buyer to the exclusion of the relevant CISG provisions.
7.3 Products to which objections have not have been properly or timely raised (pursuant to article 1495 of the Italian Civil Code) shall be deemed approved by the Buyer.
8 WARRANTY
8.1 Fibernet warrants (the “Warranty”) to the Customer that the Products are free from faults and Defects (as defined below), pre-existing the delivery of the Products, which render the Products unsuitable for the use to which they are destined or which decrease substantially the value of the Products.
8.2 A “Defect” occurs if the Product does not comply with: (i) the manufacturing standards applicable to the Products ordered; or (ii) additional technical specifications and drawings documented in writing between Fibernet and the Customer.
The term “Defect” does not include, and therefore the Warranty does not cover, defects or faults caused by Customer’s negligence or misuse of the Products. In particular the warranty does not cover any faults or defects of electric and/or electronic components of the Products, where such faults are attributable to power surges or improper or negligent use by the Customer, or without compliance with the relative instructions provided.
8.3 If requested by the Customer, Fibernet will provide a warranty that third party Products supplied are free from faults and defects for the period of the warranty granted to Fibernet by the manufacturers/suppliers of those Products.
8.4 The Customer, must notify any Defect to Fibernet (the “Claim”) within 8 (eight) days from the date of delivery of the Product or, in the event of hidden Defects, within 8 (eight) days from the date of their discovery, under the penalty of forfeiture of the Warranty and the relevant CISG provisions shall not apply. The right of the Customer to the Warranty in any case cannot exceed the term of 2 (two) years from the date of delivery of the Products (the “Warranty Period”).
8.5 The notice of Claim must be in writing, describe the Defect, include the serial number of the relevant Products and any necessary supporting documentation or photos (the “Claim Notice”). The Customer shall make such defective Products (the “Defective Products”) available for inspection by Fibernet. The Customer shall not return the Defective Products unless Seller has authorized such return in writing.
8.6 Fibernet shall notify the Customer in writing of the outcome of the Claim within 30 (thirty) days from receipt of a valid Claim Notice (the “Term”) or, if later, the date of receipt of the Defective Products at its premises. Fibernet will specify the reasons for a rejection of a Claim. If Fibernet fails to respond to the Claim within the Term, the Claim is to be considered as accepted. If Fibernet requests any additional document or information in relation to the Claim or must carry out any specific test that last more than 30 days, the Term is automatically suspended until the receipt of such document or information.
8.7 For any Product or part affected by a Defect attributable to Fibernet (the “Defective Products”), Fibernet shall, at its own discretion either:
(i) Provide the Customer with a replacement product (the “Replacement Products”) or with replacement parts (the “Replacement Parts”); or
(ii) Repair the Defective Products; or
(iii) Compensate the Customer with a credit note for an amount up to the relevant price invoiced to the Customer for the Defective Product.
In cases under (i) and (iii) above, the Customer shall return to Fibernet all Defective Products not yet returned. Otherwise, the Customer shall pay Fibernet for the retained Defective Products.
8.8 Fibernet shall not be liable for loss of profit or revenues, cost of capital, loss of contents, loss of use of equipment or systems, interruption of business, cost of replacement power, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claim of Customer’s customers for any of the foregoing types of damages.
8.9 No compensation shall be payable by Fibernet for:
(i) Damage to the Products occurred during transportation in case of shipment not made through Fibernet’s appointee;
(ii) Damage due to wear and tear of the Products or the relevant materials;
(iii) Damage to the Products due to accident or to force majeure;
(iv) Damage due to negligent or improper use by the Customer.
- 10 The rights and remedies provided hereto with reference to Defects are the only ones available to the Customer and replace any other right or remedy of the Customer provided for by law or equity.
9 FORCE MAJEURE
9.1 The Seller shall not be liable or responsible for failure or delay in performing or fulfilling any obligations under the sales contract if and to the extent caused by a Force Majeure Event.
9.2 “Force Majeure Event” refers to any act or event that prevents the Seller from performing its obligations in accordance with the purchase agreement, if such act or event is beyond the reasonable control, and not the result of the fault or negligence, of the Seller and Fibernet had been unable to overcome such act or event with the exercise of due diligence. Subject to the foregoing conditions, Force Majeure Event may include, by way of example, the following acts or events: (i) natural phenomena, such as storms, hurricanes, floods, lightning and earthquakes; (ii) explosions or fires arising from lightning or other causes unrelated to the acts or omissions of the Seller; (iii) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, terrorist acts, or rebellion; (iv) strikes or labour disputes; (v) action by a Governmental Authority, including a moratorium on any activities related to the sales contract; and (vi) the impossibility for the Seller, despite its commercially reasonable efforts, to obtain, in a timely manner, any Governmental Approval necessary to enable the Seller to fulfill its obligations in accordance with the purchase agreement, provided that the delay or inability to obtain such Governmental Approval is not attributable in any manner to Fibernet and that it has exercised its diligent and commercially reasonable efforts to obtain such Government Approval.
9.3 In such event, time for fulfillment of the obligations shall be extended for the period of continuance of such Force Majeure Event.
9.4 In the event a Force Majeure Event continues for a period longer than 6 (six) months, the Customer shall be entitled to terminate the underlying sales contract, by giving written notice to the Seller by registered letter with return receipt or courier.
10 CONFIDENTIALITY
10.1 The Buyer undertakes: (i) to treat with the utmost confidentiality all the information, data and documentation transmitted by the Seller or it may come to know in connection with the execution of any sale contract, even if they are not marked or identified as secret or confidential (“Confidential Information”); (ii) not to, wholly or partially, disclose to or inform third parties of the Confidential Information, without the Seller’s prior written consent; (iii) to limit the use of the Confidential Information for purposes relating to the execution of the sale contracts; (iv) to adopt any and all possible actions required in order for its employees and collaborators do not disclose the Confidential Information to third parties or use it in an inappropriate way.
10.2 The Buyer shall be liable for all damages and/or losses of the Seller arising out of its otherwise action or practice.
10.3 Such liability of non-disclosure of Confidential Information shall remain in force even if the underlying contract is terminated or ended-up for whatever reason.
11 NON-WAIVER
11.1 No delay or failure to exercise any right under these General Conditions will impair any such right or be construed to be a waiver thereof. No waiver of any right hereunder will be effective unless confirmed in writing by the Seller. Any waiver of a right on one occasion will not be deemed a waiver of such right, or any other right, on any other occasion.
12 SEVERABILITY
12.1 In the event that any provision of these General Conditions is deemed to be unenforceable, illegal, void or voidable, these General Conditions will continue in full force and effect without such provision; the Parties will take such further actions and make such additional arrangements as are necessary to carry out the intended transactions contemplated herein.
13 PROCESSING OF PERSONAL DATA
13.1 The Parties undertake to process only the personal data necessary to execute the agreement between the Parties and exclusively for the purposes related to it, in compliance with the applicable European and national data protection laws (EU Regulation 2016/679 of the European Parliament and the Council of April 27, 2016 – “GDPR” and Italian Legislative Decree 196/2003).
13.2 The Buyer declares to have read the privacy notice provided by Fibernet in accordance with article 13 of the GDPR and is aware that the personal data provided for the execution of the agreement are collected and processed by the Seller, as Data Controller, for administrative, accounting, and commercial purposes through the adoption of appropriate technical and organizational security measures by trained and authorized internal staff bound by confidentiality obligations.
14 GOVERNING LAW AND DISPUTE RESOLUTION
14.1 The validity, interpretation and performance of these General Conditions and all the relevant sale contracts executed shall be governed by the laws of Italy.
14.2 Any controversy, claim or dispute between the Parties concerning these General Conditions and all the relevant sale contracts executed shall be submitted to Italian jurisdiction and exclusively settled by the Court of Rome.